When an employer has reason to believe that an employee has committed serious misconduct it may be necessary to conduct an investigation prior to commencing a disciplinary process.
The Code of Good Practice: Dismissal (Schedule 8 of the Labour Relations Act, 66 of 1995) recommends that an investigation be undertaken by an employer to establish if there are grounds for misconduct which may warrant dismissal.
The purpose of an investigation prior to a disciplinary enquiry is to establish whether factual evidence exists to show that on a balance of probabilities, the employee committed the allegations of misconduct. An investigation may also demonstrate that there is insufficient evidence against an employee to institute disciplinary proceedings and accordingly guards against hasty and potentially baseless disciplinary proceedings. Such investigations ensure that there is at least some evidence indicating that an employee has committed the allegations of misconduct.
The evidentiary material obtained during an investigation will also be used during subsequent disciplinary proceedings, and act as a preparatory stage to a disciplinary process. In the event that an employee is dismissed, such evidence obtained during an investigation and referred to during a disciplinary process will be used at arbitration and potentially the Labour Court.
A pre-hearing investigation is not mandatory and a measure of flexibility in disciplinary processes is permitted if a disciplinary enquiry is properly constituted and conducted and an employee is provided with an opportunity to be heard and to respond to allegations of misconduct.
Objective of an investigation
An investigation process may be documented in a report summarizing all the evidence considered (documentary and oral), and includes a recommendation as to whether disciplinary proceedings should be commenced based on the findings of the report. Reports are generally presented to the relevant Board or Committee members tasked with the authority to determine whether disciplinary proceedings should be instituted against an employee.
Investigations may be lengthy, involving substantial review of documentary evidence as well as interviews with a number of potential witnesses who have knowledge of the alleged acts of misconduct or knowledge of policies or practices of the Company.
On other occasions, investigations may be expedited in order to place pressure on an employee to submit to a mutual separation agreement. This may be particularly appealing to a senior executive employee alleged to have committed serious misconduct and who would prefer to terminate their employment away from the public eye. These quick and quiet exits are regulated by confidentiality clauses and agreements not to make disparaging statements regarding either party. Separation agreements are also made in full and final settlement of all any potential claims. In other instances, especially if potential criminal conduct is involved, mutual separation agreements may not be appropriate.
In some cases, the pressure of an investigation may result in an employee voluntarily resigning. This is especially so if compelling and damaging evidence is obtained during the investigation process. Most employees may wait until they have a sense of the evidence collected by the employer during the investigation, whilst others may resign at the sight of first steps taken towards an investigation into their alleged misconduct. As a result of duties imposed in various industries, for example, financial service providers, employers may be required to continue an investigation notwithstanding the resignation of an employee.
An investigation process may also uncover other employees acting in collusion with the alleged accused employee, or employees who had knowledge of the misconduct. In such circumstances, further disciplinary processes may commence in respect of those employees.
It may be necessary to suspend an employee pending the outcome of an investigation process, and if applicable, pending the outcome of a disciplinary hearing.
Suspensions have a detrimental impact on an effected employee and may prejudice an employee’s reputation, advancement, job security and fulfillment. Suspensions are therefore required to be based on substantive reason and must be followed by a fair procedure. Our courts have held that at least three requirements must be met prior to suspending an employee:
• the employer has a justifiable reason to believe that that the employee has engaged in serious misconduct;
• there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy, and
• the employee is given the opportunity to state a case before the employer makes any final decision to suspend the employee.
In relation to the opportunity to state a case prior to the employer’s decision to suspend the employee, a formal hearing is not required and the opportunity to make written representation will be sufficient in most cases. This provides an opportunity to the employee to give reasons as to why he/she should not be suspended or why suspension is not necessary.
Employers can impose various conditions during a period of suspension. Those conditions include prohibiting the employee from:
• accessing the Company’s premises or the premises of any of the Company’s clients or business associates;
• accessing the Company’s IT or other systems;
• contacting any of the Company’s employees and/or clients or other business associates.
The purpose of the conditions of suspension is to ensure that the integrity of the investigation is protected during the employee’s suspension. It also prevents the employee from interfering with the investigation and attempting to influence potential witnesses to the investigation, destroying documents and deleting data contained on their work computers. Suspension ordinarily occours on full pay.
In the event that a Company investigates allegations of serious misconduct relating to a high level executive employee and has concerns of public and media attention, it may be appropriate to propose a period of “special leave” for the employee as opposed to suspension. This will not be deducted from the employee’s annual leave entitlement and is implemented on full pay. Conditions of strict confidentiality regarding the reasons for special leave may be agreed between the parties. This may be appropriate when an employer prefers the option of a mutual separation agreement and also gives room for negotiation of a hand over process in the event that mutual separation is agreed.
Randall Van Voore is a Partner and Melissa Cogger is an Associate, Employment & Benefits, Bowmans South Africa.